Bombay High Court
Bel -Air College Of Nursing ... vs State Of Maharashtra, Through ... on 29 September, 2017
Bench: Anoop V. Mohta
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Ladda
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION No. 2559 of 2017.
WITH
CIVIL APPLICATION No. 2074 of 2017.
IN
WRIT PETITION No. 2559 of 2017.
(1) Sr. Lourdu Mary N,
Principal,
Indian Red Cross Society
Maharashtra State Branch
BEL-AIR College of Nursing
(Affiliated to Maharashtra
University of Health Science)
having its Office at Panchgani
Taluka Mahabaleshwar,
District Satara.
(2) Mrs. Shubhangi Sadashiv Dumbray
Principal,
Tehmi Grant Institute of Nursing
Education, 13 Tadiwala Road,
Pune 411 001. ..Petitioners.
Versus.
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1) State of Maharashtra,
(Summons to be served on the
learned Government Pleader appearing
for State of Maharashtra under Order
XXVII, Rule 4 of the C.P.C.,1908).
2) The Registrar,
Maharashtra University of Health
Sciences Nashik, having its office at
Dindori Road, Mhasrul, Nashik 422004.
3) Admission Regulation Authority
having its office at :
Directorate of Medical Education & Research
4th Floor, Government Dental College Building,
St. Gorges Hospital Campus
Near CST, Fort, Mumbai 400 001.
4) The Secretary,
Medical Education and Drugs Department
Government of Maharashtra
Mantralaya, Mumbai 400 032.
(Summons to be served on the learned
Government Pleader appearing for State of
Maharashtra, under Order XXVII,
Rule 4 of the C.P.C.,1908).
5) The Director of Medical Education and
Research Mumbai.
(Summons to be served on the learned
Government Pleader appearing for State of
Maharashtra, under Order XXVII,
Rule 4 of the C.P.C.,1908).
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6) Indian Nursing Council,
8th Floor, NBCC Center,
Plot No.2, Community Center29-wp-8917-11
Okhla Phase-I,
New Delhi - 110020. .. Respondents.
WITH
WRIT PETITION No. 9099 OF 2017
BEL - AIR College of Nursing
run by Indian Red Cross Society,
Maharashtra State Branch
(Affiliated to Maharashtra
University of Health Science)
through the Principal
(Sr. Lourdu Mary N.)
Having the office at
Panchagani, Taluka Mahabaleshwar,
District Satara. ..Petitioner.
Versus.
1) State of Maharashtra
(Summons to be served on the learned
Government Pleader appearing for State of
Maharashtra, under Order XXVII,
Rule 4 of the C.P.C.,1908).
2) The Secretary,
Medical Education and Drugs Department
Mantralaya,
GT Hospital Campus,
9th Floor, Lokmanya Tilak Marg,
Mumbai-400 032.
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3) The Director,
Directorate of Medical Education & Research
4th Floor, Government Dental College Building,
St. Gorges Hospital Campus,
Near CST- Fort, Mumbai -400 001.
4) Admission Regulation Authority
Having the office at :
Room No. 305, Government Polytechnic
Building 49, Kherwadi, Ali Yawar Jung Marg,
Bandra (East), Mumbai - 400 051.
5) Maharashtra University of Health Science,
Nashik, Dindori Road,
Mhasrul, Nashik 422004.
(Summons to be served on the learned
The Registrar, Maharashtra University of Health
Sciences, Govt. Dental College Building,
4th Floor, St. Georges Hospital Compound,
Near C.S.T.,MUMBAI 400 001.
6) Indian Nursing Council,
8th Floor, NBCC Center,
Plot No.2, Community Center
Okhla Phase-I,
New Delhi - 110020. .. Respondents.
Mr. A. V. Anturkar, Senior Advocate a/with Rushikesh Bazge,
Advocate, a/with Mr. S.B.Deshmukh, Advocate for the Petitioners in
Writ Petition No. 2599 of 2017 and CAW No. 2074/2017 and W.P.
No.9099 of 2017.
Mr. C.P. Yadav, AGP for Respondent No. 1, 4 and 5.
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Mr. R.V. Govilkar a/with Mr. Mihir Govilkar for Respondent No.2.
Mr. S.S. Patwardhan a/with Mr. Bhooshan Mandlik for Respondent
No.3.
Mr. Amey Deshpande a/with Mr. Gaurang Jhaveri for Respondent
No.6.
CORAM :ANOOP V. MOHTA, & SMT.
BHARATI H.DANGRE JJ.
DATED : 29 th September,2017.
RESERVED FOR JUDGMENT ON: 20 th Sept. 2017.
(PRONOUNCED ON :- 29 th Sept, 2017.)
JUDGMENT (Per:- Smt. Bharati H. Dangre, J)
1) Two writ petitions raises a common question of law
as to whether it is permissible for the Private Unaided
Educational Institution to admit students who have not
participated in the Common Entrance Test (CET) prescribed by
the State Government only on the spacious ground that if the
admissions are not granted, the seats in the Institution would
waste.
2) Since both the petitions revolve around the common
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issue, we have heard the petitions together and dispose off by
common judgment.
3) Two petitioners before us are the Nursing Colleges
situated at Pachgani, taluka Mahabaleshwar, District Satara
run by the Indian Red Cross Society, which is approved by
Indian Nursing Council and affiliated by Maharashtra
University of Health Science. It is not in dispute that the
admissions to the said Colleges for B.Sc. (Nursing) Course is
controlled by the Director of Medical College and Research and
the Admission Regulating Authority, Mumbai. Both the
petitioners Colleges are aggrieved by the communication issued
to them by the Maharashtra University of Health Sciences by
which the University had informed them that the names of the
candidates who have been forwarded by the petitioners-colleges
for registration to the Nursing Course cannot be granted since
they were not admitted through the Common Entrance Test
conducted by the Commissioner, CET and the said students had
appeared in the NEET 2016 Examination instead of MHT-CET.
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The said communications from the University are impugned in
both the writ petitions and it is prayed that the said
communications be set aside and direction is sought to treat the
students admitted by the petitioner institution to the B.Sc.
Nursing Course as "duly admitted students" and permit the
petitioners to conduct their admission process for basic "B.Sc.
Nursing Course" and their examination form be accepted and
they be permitted to appear for the examination and their
results be declared.
4) The writ petition came before this Court on 14th
February, 2017 and was circulated for the first time on 15 th
March, 2017, when the students admitted by the Institution
were to fill up their forms for appearing in B.Sc. Nursing
Examination. The matter was listed before this Court on 22 nd
March, 2017 and this Court considered the prayer for interim
relief, wherein it was prayed that the respondent authorities
may be directed to accept the examination form from the
petitioners-colleges and allow the students to appear for
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examination and declare their result and continue with their
studies subject to outcome of the petition. The interim relief
was granted to the petitioners in terms of the prayer as
mentioned above with the condition that the result of the
students who have been admitted by the petitioners shall not be
declared without leave of the Court and neither the petitioners
nor the students shall be entitled to claim any equity on the
basis of interim order allowing them to fill up the forms and to
appear in the examination and it was also made clear that the
same shall be subject to further orders of this Court.
5) On 21st August, 2017 Civil Application No. 2074/
2017 is filed in Writ Petition No. 2559/2017 and Civil
Application No. 2074/2017 was filed in Writ Petition No. 9099/
2017. By the said Civil Applications, it is prayed that the Court
be pleased to direct the Maharashtra University of Health
Science to declare the result of 43 students who were admitted
by the petitioners-institution in the respective colleges. When
the matter was listed before us for hearing on the civil
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application, we decided to hear the matter finally and
accordingly directed the listing of the matter for final disposal
by informing the parties that the matter will be heard finally.
6) We have heard learned Senior Advocate Mr. A. V.
Anturkar, a/with Rushikesh Bazge, Advocate, a/with Mr.
S.B.Deshmukh, Advocate for the Petitioners in Writ Petition No.
2599 of 2017 and W.P. No.9099 of 2017 Mr. R.V. Govilkar
a/with Mr. Mihir Govilkar for Respondent No.2. Mr. S.S.
Patwardhan a/with Mr. Bhooshan Mandlik, Advocate for
Respondent No.3. Mr. C.P. Yadav, AGP for Respondent No. 1, 4
and 5. Mr. Amey Deshpande a/with Mr. Gaurang Jhaveri for
Respondent No.6.
7) Learned Senior Counsel Shri Anturkar appearing on
behalf of the petitioners contend that before enactment of the
Maharashtra Unaided Private Professional Educational
Institution (Regulation of Admission and Fees) Act, 2015
(hereinafter referred to as "Act of 2015"), the judgment of this
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Court in Review Petition No. 120 of 2006 in Writ Petition No.
6332 of 2005 dated 10th August, 2006 was governing the field
and this Court had framed a Scheme, by virtue of which Seats
remaining vacant in the Nursing Courses were permitted to be
filled in by the Colleges at their own level directly in accordance
with the inter-se merit of the students and in a fair and
transparent manner. This method, according to the learned
Senior Counsel was known as "spot admissions" and this
process was followed where the seats were filled at Institution
Level, which was last round of admission, till 2015. According
to the learned Senior Counsel, the Commissioner of Entrance
Test, Mumbai who is the "Competent Authority" and also the
"Admission Regulatory Authority" within the meaning of
Section 2 (e) and 2(a) of the Act of2015 issued an "Information
brochure of the preference system for admission to Health
Science Courses". According to Shri Anturkar, the petitioners
colleges participated in the various rounds of Centralized
Admission Process (CAP) conducted by the Commissioner and
at the fag end of the third round namely 27th October, 2016 as
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against 40 intake for the petitioners in W.P. No.2559 of 2017,
zero students joined in the CAP process and as far as petitioner
in Writ Petition No. 9099/2017 is concerned only 15 students
joined, leaving 25 vacancies out of the total sanctioned strength
of 40. Learned Senior Counsel Shri Anturkar, further
submitted that a notice was published to fill up the remaining
Seats and on 30th October, 2016 the petitioners in Writ Petition
No.2559/2017 could get 22 students who had passed MHT-CET
Examination leaving 18 vacancies whereas in the petitioner
institution in Writ Petition No. 9099/2017, 25 seats still
remained vacant since 15 students had already joined.
According to Shri Anturkar, thereafter it was open to the
petitioners institution to fill the remaining seats through to
candidates who are 'Eligible'. The dispute arises from this stage
and about the "Eligibility".
8) According to Shri Anturkar, the eligibility of the
candidates is already prescribed by the respondents vide
Notification dated 3rd December, 2015 in exercise of powers
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conferred by clause (r) of Section (2) read with sub-Section
(1) & (2) of Section 3 of the Maharashtra Unaided Private
Professional Educational Institution (Regulation of Admissions
and Fees) Act, 2015 and the eligibility for B.Sc. Nursing
Course prescribed is as follows :-
"A candidate should have passed in the subject
of Physics, Chemistry and Biology (PCB) at
qualifying examination (i.e. 10+2).
Furthermore, the candidates belonging to SC/ST
or other Other Backward Class (OBC) marks
obtained in PCB taken with qualifying
examination upto 40% instead of 45% as stated
above. English is compulsory subject in 10+2
for admission in B.Sc. Nursing or as prescribed
by Indian Nursing Council from time to time."
9) According to the petitioners, the said criteria is the
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one which is fixed by the Indian Nursing Council which is the
Apex Body as far as Nursing Courses are concerned. The
Counsel for the petitioners emphatically states that this is the
only eligibility criteria which a candidate must possess while
seeking admission to B.Sc. Nursing Courses. He did not
consider appearance in the Competition Examination of
MHCET to be a "criteria for eligibility". He states that the
Colleges of the petitioners participated in the CAP round and
did get some students through the Commissionerate of CET.
However, in the last round i.e. after the waiting list, in terms of
Notification declaring the Schedule of MHT-CET 2016 process
dated 24th October, 2016 the last stage was reflected as "eligible
students to be admitted as per merit (spot admission round).
He therefore argues that at this stage the petitioners-colleges
have admitted students to fill up the seats by the candidates
who had not appeared for MHT-CET but had appeared for
NEET. According to Shri Anturkar, the eligibility criteria was
not passing of Entrance Examination, since it was not
prescribed by the Indian Nursing Council and it is not a
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condition of eligibility and as such there is no breach of
'eligibility' in admitting the students without appearing for the
MHT-CET. He placed reliance on the judgment in the case of
State of Tamilnadu Vs. Adhiyaman Educational & Research
Institute (1995) 4 SCC 104, to support his submission that the
qualification prescribed by the Apex Body in the field of
Education vide Entry 66 of List 1 would prevail over the
qualification/ standards prescribed by the State Legislation.
Thus, he submits that since the Indian Nursing Council had
prescribed the basic eligibility criteria which is passing of 12 th
standard with 45% marks in PCB, appearance for MHT-CET is
not one of the criteria which is prescribed as 'condition of
eligibility' by the Indian Nursing Council and therefore
insistence of MUWS that the students should have appeared for
MHT-CET and in the absence thereof their admissions cannot
be registered is totally unsustainable.
10) Shri Anturkar, the learned Senior Counsel further
argued that both the colleges have admitted students in the last
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academic year i.e. 2016-17 and in this Academic Year also the
seats are likely go vacant if on conclusion of the rounds of CAP
the petitioners are not permitted to admit students who have
not appeared for MHT-CET but possess the basic eligibility
criteria prescribed by the Indian Nursing Council.
11) Per contra, the Counsel for the University Shri
Patwardhan invited our attention to the existing scenario in
the field and according to him the enactment of the
Maharashtra Unaided Private Professional Educational
Institution (Regulation of Admission and Fees) Act, 2015 and
the Rules framed thereunder vide Notification dated 19th
August, 2016 regulate the admissions to the Full Time
Professional Courses including the B.Sc. Nursing Courses. He
placed reliance on Section 4 and 5 of the Act of 2015 and
contend that as per the Rules of 2016 the eligibility for
admission to first year of the Professional Courses would be one
notified by the State Government under sub-Section (1) of
Section 3 of the Act but the Rules mandate that the candidate
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shall be selected to the above stated courses on the basis of
merit in CET. The learned AGP Shri. Yadav appearing on behalf
of the Directorate of Medical Education and Drugs Department
also relies upon the Act of 2015 and the Rules and prays for
dismissal of the writ petitions.
12) There is no dispute about the fact that the State
Government has enacted the Act of 2015 with a view to provide
for the Regulation of Admissions and Fees by the Unaided
Private Professional Educational Institution in the State of
Maharashtra and it has come into force on 12 th May, 2015. The
said Act defines Common Entrance Test in Section 2 (d), CAP in
2 (c), in the following manner:-
2(c):- It defines "Centralized Admission Process" (CAP)
means :
The centralized process of admission carried
out by the competent authority through single
window system in a transparent manner for
admitting the students for various professional
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courses in educational institutions:
2.d) :- "Common Entrance Test (CET)" means the
entrance test conducted for determination of merit
of the candidates by Centralized Admission Process
(CAP) for the purpose of admission to professional
education courses through a single window system.
2 (e) :- Competent Authority means the
Commissioner of State CET appointed by the
Government under Section 10, for conducting CET
through CAP for the admission into Private
Professional Educational Institutions;
2 (q) :- "Private Professional Educational
Institution" means any college, school, institute,
institution or other body, by whatever name called,
conducting any professional course or courses
approved or recognized by the appropriate
authority and affiliated to any university."
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2(r) :- "Professional Education" means any
educational courses of study declared and notified
as such, from time to time by the Government
which includes a course leading to the award of an
Under Graduate or Post-Graduate degree, diploma,
by whatever name called and recognized by the
appropriate authority.
It is not in dispute that Nursing B.Sc. Courses has
been declared as professional courses by the State of
Maharashtra in the year 2006 vide Notification dated
24/6/2006.
Section 2 (q) of the Act reads as under:-
Section 3 of the said Act provides that the eligibility
conditions and requirements for the admission to a professional
course at any private professional educational institution shall
be such as may be notified by the Government from time to
time, but shall not be less than, those stipulated by the
appropriate authority and no student shall be admitted to a
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private professional institution unless the student possesses
such educational or equivalent qualification as may be notified.
Section 4 of the Act prescribes the manner of
admission and it reads as below : The admissions to seats for
professional course in every unaided institution shall be
carried out in the following manner: --
(a) admission to seats in a Private Professional
Educational Institution excluding institutional quota declared
by Government from time to time, shall be made on the basis of
merit by following the procedure of Common Entrance Test
(CET) conducted in the manner, as may be prescribed by rules:
Provided that, the admission to institutional quota
shall be on the basis of merit and after following the procedure
specified by the appropriate authority :
Provided further that, the State Government may by
order issued from time to time exempt any professional
courses, from requirement of the Common Entrance Test (CET)
thereto.
(b) admissions to such institution shall be carried
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out by the competent authority through the Centralized
Admission Process on the basis of Common Entrance Test
(CET) and Centralized Admission Process (CAP);
(c) the Competent Authority shall supervise and
guide the entire Centralized Admission Process in such manner
as it may specify with a view to ensuring that the process is
fair, transparent, merit-based and non-exploitative.
It is important to take note of Section 5 provides that
any admission made in contravention of the provisions of this
Act or the rules made thereunder shall be void.
In exercise of the powers conferred by Section 23 of
the Act of 2015 the Government of Maharashtra has prepared
Rules to regulate admissions to the first year of the Full Time
Professional Ayurved, Unani, Homeopathy, Physiotherapy,
Occupational Therapy, Speech Therapy, Prosthetic and
Orthotics and B.Sc Nursing Courses Rules, 2016.
These Rules again define CET to mean the Common
Entrance Test (CET) conducted for admission to the Courses
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under this rule and the definition of the word "Courses" means
the Undergraduate courses in Ayurved, Unani, Homeopathy,
Physiotherapy, Occupational Therapy, Speech Therapy,
Prosthetic and Orthotics and B.Sc. Nursing, as the case may be.
As per Rule 3 of the said Rules of 2016 the Competent
Authority shall invite online or offline application forms, in the
form as prescribed by it, from the candidates for participating
in Centralized Admission Process for seeking admission to the
Courses for which the CET is required for the respective
academic year. The Rule authorises the competent authority to
declare the manner, mode, schedule and pattern of CET. The
rule prescribes the types of candidature which categorises
Maharashtra State candidature, Minority candidature, NRI
candidature. The eligibility is prescribed in Rule 6 in the
following manner:-
Eligibility :-
(a) Eligibility Marks for Admission to BAMS or
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BHMS or BUMS or BPTh or BOTh or BASLP or BP&Q and B.Sc.
Nursing. The eligibility for admission to the first year of the
course shall be such as notified by the Government under sub-
section (1) of section 3 of the Act. Candidates shall be selected
to above stated courses on basis of merit in CET.
Allocation of Seats is prescribed in Rule 8 to the
different types of candidature and it is to be noted that if the
seats reserved for NRI remains vacant they can be filled in by
the institution from the eligible Maharashtra State candidature
on the basis of inter-se merit of CET. The distribution of seats is
also prescribed in the said rules along with the stages of CAP.
Allotment of seats under CAP has to be made on the basis of
inter-se merit in the CET whatsoever may be the type of
candidature and Rule 13 makes it clear that the unaided
private professional education institution shall admit
candidates through the centralized admission process.
13) Thus, what is apparent from the conjoint reading of
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the Act of 2015 and the Rules of 2016 is that after these
enactment the admission to the private unaided professional
courses has to be mandatorily done through CAP conducted by
the competent authority on the basis of inter-se merit of the
candidates in the common entrance test. We do not agree with
the submission of the learned Senior Counsel for the petitioner
and his reliance on the judgment in the case of State of
Tamilnadu (cited supra) since what is apparent from the Act is
that Section 3 prescribes the eligibility for admission and
Section 4 prescribes for manner of admission. The eligibility
criteria which the learned Senior Counsel has argued is the one
which is prescribed under Section 3 is a part of the Act, 2015.
However, Section 4 of the Act cannot be ignored and therefore
Section 3 and 4 of the Act will have to be read together which
are included in the Chapter relating to "Regulation of
Admissions". Section 5 further makes it clear that any
admission made in contravention of provisions of this Act
meaning thereby either for non satisfying the eligibility
condition prescribed in Section 3 or non-compliance with the
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manner of admission as prescribed in Section 4 would result
into a "void admission". As per Section 4 the admission to seats
for professional courses in the unaided educational institution
shall be carried out on the basis of merit by following procedure
of CET with proviso that the admissions to the institutional
quota shall be made on the basis of merit and after following the
procedure prescribed by the Appropriate Authority. By virtue
second proviso to Section 4 (a) the State Government is
empowered to exempt any professional courses from
requirement of CET. Institutional quota is defined as seats
available for admission for eligible candidates to institutional
level as declared by the Government or Appropriate Authority
from time to time. If we accept statement statement of the
Counsel for the petitioner, it means those seats which are left
vacant after the CAP round they are to be treated as
institutional quota. However, we are afraid that the said is not
the intention of the legislature and institutional quota is the one
which is displayed and carved out at the beginning of admission
process and fixed by the State Government and left over not
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the quota as claimed by the Counsel for the petitioner.
14) In furtherance of the Act and the Rules, the
Commissionerate of Common Entrance Test Cell, Mumbai had
published the information brochure for Common Entrance Test
2016 for Health Science Courses which included B.Sc. Nursing
Course. It was made clear in the said brochure that MHCET
2016 is applicable to all Government Municipal Corporation
and Private Aided and Unaided Minority Health Science
Colleges and it would govern the admission to MBBS, BDS,
BAMS, BHMS, BUMS, BPTh, BOTh, BASLP, BP&O, B.Sc.
(Nursing) and B.VSc. & AH courses for the academic year
2016-17. It was also made clear that candidates will be selected
on the basis of the merit in the MHT-CET, 2016 to the aforesaid
courses. The petitioner is placing reliance on the Government
Resolution dated 29th April, 2015 which prescribe the modality
for admission to the B.Sc. Nursing Course and the manner in
which the vacant seats after existing MHT-CET list. However,
the said Government Resolution is governing admission
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process of B.Sc. Nursing for the year 2015-16 and it is relevant
to note that at that time the Act of 2015 and the Rules were not
in existence. The State Government after taking into
consideration the directions from the Hon'ble Apex Court in
case of Islamic Academy Vs. State of Karnataka, (2003)
6 SCC 697 which mandated conduct of common entrance test
for professional examination, the State Government had
specifically dealt with vacant seats as regards B.Sc. Nursing
Courses are concerned and permitted them to be filled it at the
last stage by candidates who did not appear for the CET
examination. However, the said Government Resolution cannot
prevail in the light of the Act of 2015 and the Rules framed
thereunder, wherein the only manner in which the seats of
B.Sc. Nursing can be filled in is in the manner prescribed in the
brochure published by the Director, Medical Education for the
year 2016-17. The contention of the petitioners is that if the
seats were not filled in they would have gone vacant and
therefore the petitioners institution had filled in the seats
through student on the basis that they had appeared for NEET
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examination. However, for the year 2016-17 the ordinance was
specifically issued regulating admission process only through
the State CET and NEET was not made applicable. In such
circumstances, the petitioner institution could not have taken
advantage of the peculiar situation of that year when NEET was
conducted so also the CET was conducted by the State
Government. However, the admission to the professional
courses was made on the basis of CET conducted by the State
and it was not therefore permissible for the petitioner to give a
complete go-bye to the procedure prescribed by the Competent
Authority on the same ground that the seats would have gone
waste and therefore the petitioners-institution admitted
students who had not even appeared for MHT-CET. We are of
the firm view that such admissions are already 'void
admissions' in terms of Section 5 of the Act of 2015 and the
MHUS is perfectly justified in issuing impugned communication
by it which has refused registration to the said school. This
Court by interim order permitted the students of the petitioner
institution to submit their examination form. However, the
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results are not declared and this Court by its interim order
dated 22/3/2017 had made it very clear that neither student
shall be entitled to claim any equity on the basis of the interim
order allowing them to fill up the form and appear in the
examination. Since we are of the clear view that the admissions
of those students who did not participate in the MHT-CET
examination 2016-17 are void and cannot be regularized. We
of of the conscious view that the students have appeared for the
first year B.Sc. Nursing Course and have put in one year of
their career. However, we are of the firm opinion that
whatsoever may be, we cannot permit regularization of
admissions of those students which are completely void in
terms of Section 5 of the Act of 2015 and we would not permit
regularization of such void admissions.
15) Learned senior counsel for the petitioner has placed
heavy reliance on the judgment in the case of State of
Tamilnadu vs. Adhiyaman Educational & Research
Institute, cited supra, to emphasis that the Nursing Council
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is a apex body and it had prescribed minimum qualification
for a person seeking admission to B.Sc. Nursing, which merely
requires the students to have passed 12 th standard
examination with physics, chemistry and biology. However,
the Apex Body has never prescribed eligibility in the form of
common entrance test, which the State Government has.
According to the learned senior counsel, in the light of the
observations of the Apex Court in the said case, the State
could not have prescribed qualifications which are higher than
the one prescribed by the Apex Body.
However, according to us, the said judgment is of no
assistance to the petitioners as the Act of 2015, which is
enacted by the State Legislature in exercise of the powers
vested in it, has prescribed only the mode for admission to the
professional courses in the unaided institutions. The eligibility
conditions are also prescribed by the State Act and the
Government has prescribed minimum eligibility conditions
which are commensurating with the one which are prescribed
by the Nursing Council of India. However, the conduct of the
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common entrance test has been treated as recognized mode for
the admissions to the professional courses by the Apex Court
in various judgment. The common entrance test by the State
or its agency ensures equal opportunity to all meritorious and
suitable candidates and as such the candidates can be
identified for being allotted to the institution, depending upon
the courses of the State, number of students and other
relevant factors. The Apex court in the case of Modern
Dental College and Research Centre & Ors. vs.
State of Madhya Pradesh & Ors. - [2016 (7) Supreme
Court Cases 353], while deliberating on the right of occupation
of the private unaided and minority and non-minority
educational institutions has succinctly observed that such
common entrance test by the State or its agency ensures twin
object namely, fairness and transparency and merit apart
from preventing mal-administration. The Apex Court has
observed that having regard to the larger interest and welfare
of the students community and to promote merit and achieve
excellence and curb mal-practices, it would be permissible for
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the State to regulate admissions by providing a centralized
and single window procedure. This conduct of the common
entrance examination is a well accepted mode for admission
for the students and rather the departure from the same is
frowned upon by the Hon'ble Apex Court.
The Hon'ble Supreme Court in the State of
Maharashtra & Ors. vs. D. Y. Patil Vidyapeeth & Ors. [2016
(9) SCC 401], has, however, further clarified that for the
Centralized / State conducted admission process held to be
permissible in the judgment of the Modern Dental College &
Research Centre (supra), encompasses not only central/state
conduct entrance test but also centralized state conduct
counseling.
16) In view of the aforesaid legal scenario, we are of the
firm opinion that the petitioners' institutions cannot fill the
seats meant for the Maharashtra State Quota candidates by
surpassing the procedure of MHT-CET on the spacious ground
that they participated in the cap rounds but at the fag end the
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seats were going vacant and, therefore, the petitioners
institutions resorted to the mechanism of filling those seats by
candidates who have not appeared for MHT-CET examinations.
We are of the opinion that the said procedure, if permitted to be
carried out in Nursing Colleges would also be required to be
followed in filling of the seats of MBBS, BDS and others health
science courses since the conduct of the MHT-CET 2017 is for
the all sciences courses. We are also unable to accept the
submission of the learned senior counsel, in view of the
observations of the Hon'ble Apex Court in the case of
Visveswaraiah Technological University & Anr. vs.
Krishnendu Halder & Ors .- [2011 (4) SCC 606], wherein
the Hon'ble Apex Court in para 17 observed as follows :
"17. No student or college, in the teeth of the existing
and prevalent rules of the State and the University
can say that such rules should be ignored, whenever
there are unfilled vacancies in colleges. In fact the
State/University, may, in spite of vacancies, continue
with the higher eligibility criteria to maintain better
standards of higher education in the State or in the
colleges affiliated to the University. Determination of
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such standards, being part of the academic policy of
the University, are beyond the purview of judicial
review, unless it is established that such standards
are arbitrary or "adversely affect" the standards, if
any, fixed by the central body under a Central
enactment. The order of the Division Bench is
therefore unsustainable."
This view was taken by the Hon'ble Apex Court after
considering the judgment in the case of State of Tamilnadu,
cited supra.
17) In the result, the petitioners institution are not
entitled for the relief prayed in the writ petition and the
writ petition deserves to be dismissed. Petitioners
institution to intimate the students whose admissions
have been declared by us to be void admissions forthwith
and release their original documents which would enable
them to prosecute their further career as per their choice.
Both the writ petitions are dismissed.
18)
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18) Since we have dismissed both the writ petitions, civil
application No. 2074 of 2017 is also rejected.
(SMT. BHARATI H.DANGRE J) (ANOOP V. MOHTA, J)
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